Law as norms: Hans Kelsen
Hans Kelsen (1881–1973), in his complex ‘pure theory of law’, expounds a subtle and profound account of the way in which we should understand law. We should do so, he insists, by conceiving it to be a system of ‘oughts’ or norms. Kelsen does concede that the law consists also of legal acts as determined by these norms. But the essential character of law derives from norms – which include judicial decisions and legal transactions such as contracts and wills. Even the most general norms describe human conduct.
Influenced by the great 18th-century philosopher, Immanuel Kant, Kelsen accepts that we can understand objective reality only by the application of certain formal categories like time and space that do not ‘exist’ in nature: we use them in order to make sense of the world. Similarly, to understand ‘the law’ we need formal categories, such as the basic norm – or Grundnorm – which, as its name suggests, lies at the base of any legal system (see below). Legal theory, argues Kelsen, is no less a science than physics or chemistry.
Thus we need to disinfect the law of the impurities of morality, psychology, sociology, and political theory. He thus propounds a sort of ethical cleansing under which our analysis is directed to the norms of positive law: those ‘oughts’ that declare that if certain conduct (X) is performed, then a sanction (Y) should be applied by an official to the offender. His ‘pure’ theory thus excludes that which we cannot objectively know, including law’s moral, social, or political functions. Law has but one purpose: the monopolization of force.
Kelsen’s concept of a norm entails that something ought to be, or that something ought to happen – in particular, that a person ought to behave in a specific way. Hence both the statement ‘the door ought to be closed and a red traffic light constitute norms. To be valid, however, a norm must be authorized by another norm which, in turn, must be authorized by a higher legal norm in the system. Kelsen is intensely relativistic: he repudiates the idea that there are values ‘out there’. For him all norms are relative to the individual or group under consideration.
The promotion of social order is achieved by governments enacting norms that determine whether our conduct is lawful or unlawful. These norms, argues Kelsen, provide sanctions for failure to comply with them. Legal norms therefore differ from other norms in that they prescribe a sanction. A legal system is founded on state coercion; behind its norms is the threat of force. This distinguishes the tax collector from the robber. Both demand your money. Both, in other words, require that you ought to pay up. Both exhibit a subjective act of will, but only the tax collector’s is objectively valid.
Why? Because, says Kelsen, the subjective meaning of the robber’s coercive order is not interpreted as its objective meaning.
Why not? Because no basic norm is presupposed according to which one ought to comply with this order. And why not? Because the robber’s coercive order lacks the ‘lasting effectiveness without which no basic norm is presupposed’. This demonstrates the essential relationship in Kelsen’s theory between validity and effectiveness.
His model of a legal system is therefore a succession of interconnected norms advancing from the most general ‘oughts’ (e.g. sanctions ought to be effected in accordance with the constitution) to the most particular or ‘concrete’ (e.g. Charles is contractually bound to mow Camilla’s grass). Each norm in this hierarchical system draws its validity from another higher norm.
The validity of all norms is ultimately based on the basic norm. As the validity of each norm depends on a higher norm whose validity depends in turn on another higher norm, we eventually reach a point of no return. This is the basic norm or Grundnorm.
All norms emanate from this norm in escalating levels of ‘concreteness’, including the very constitution of the state. Since, by definition, the validity of the basic norm cannot depend on any other norm, it has to be presupposed. Without this presupposition, Kelsen claims, we cannot understand the legal order. The basic norm exists, but only in the ‘juristic consciousnesses. It is an assumption that makes possible our comprehension of the legal system by the legal scientist, judge, or lawyer. It is not, however, selected arbitrarily, but by reference to whether the legal order as a whole is ‘by and large’ effective. Its validity depends on efficacy. In other words, the validity of the basic norm rests, not on another norm or rule of law, but is assumed – for the purpose of purity. It is therefore a hypothesis, a wholly formal construct.
The nature of the basic norm is illustrated by Kelsen’s religious analogy in which a son is instructed by his father to go to school. To this individual norm, the son replies, ‘Why should I go to school?’ In other words, he asks why the subjective meaning of his father’s act of will is its objective meaning, i.e. a norm binding for him – or, which means the same thing, what is the basis of the validity of this norm. The father responds, ‘Because God has commanded that parents be obeyed – that is, God has authorized parents to issue commands to children.’ The son retorts, ‘Why should one obey the commands of God?’ He is, in Kelsenian terms, asking why the subjective meaning of this act of will of God is also its objective meaning – that is, a valid norm or, which amounts to the same thing, what is the basis of the validity of this general norm. The only possible answer to this is: because, as a believer, one presupposes that one ought to obey the commands of God. This is the statement of the validity of a norm that must be presupposed in a believer’s thinking in order to ground the validity of the norms of a religious morality. It constitutes the basic norm of a religious morality, the norm that grounds the validity of all the norms of that morality – a ‘basic’ norm, because no further question can be raised about the basis of its validity. The statement is not a positive norm – i.e. not a norm posited by a real act of will – but a norm presupposed in a believer’s thinking.
The basic norm is intended to have two major functions. First, it assists us in distinguishing between the demands of a robber and those of the law. In other words, it enables us to regard a coercive order as objectively valid. Secondly, it explains the coherence and unity of a legal order.
All valid legal norms may be interpreted as a non-contradictory field of meaning. Kelsen frames the basic norm as follows:
Coercive acts ought to be performed under the conditions and in the manner which the historically first constitution, and the norms created according to it, prescribes. (In short: One ought to behave as the constitution prescribes.)
The basic norm, as a purely formal construct, has no specific content. Any human conduct, Kelsen says, may be the subject matter of a legal norm. Nor can the validity of a positive legal order be denied merely because of the content of its norms.
Since Kelsen argues that the effectiveness of the whole legal order is a necessary condition of its validity of every norm within it, implicit in the very existence of a legal system is the fact that its laws are generally obeyed. In The Pure Theory of Law he puts the matter bluntly: ‘Every by and large effective coercive order can be interpreted as an objectively valid normative order.’ But this is problematic. How can we know whether laws are actually being observed or disregarded? How do we test whether the law is, in Kelsen’s phrase, ‘by and large’ effective? Many would say that the efficacy or otherwise of a legal order is an empirical matter, something we can witness or observe. But the pure theory spurns ‘sociological’ enquiries of this kind.
Kelsen also eschews any consideration of the reasons why the law might be effective (its rationality, goodness, etc.). If the validity of a legal order requires the effectiveness of its basic norm, it follows that when that basic norm of the system no longer attracts general support, there is no law. This is what happens after a successful revolution. The existing basic norm no longer exists, and, Kelsen says, once the new laws of the revolutionary government are effectively enforced, lawyers may presuppose a new basic norm.
This is because the basic norm is not the constitution, but the presumption that the altered state of affairs ought to be accepted in fact. Kelsen’s ideas have been cited by a number of courts in countries which have experienced revolutions: Pakistan, Uganda, Rhodesia, and Grenada.
Law as social fact: Joseph Raz
The writing of the Oxford philosopher, Joseph Raz (b. 1939) does not lend itself to simple synopsis. As a leading ‘hard’ or ‘exclusivist’ legal positivist, Raz maintains that the identity and existence of a legal system may be tested by reference to three elements; efficacy, institutional character, and sources. Law is thus drained of its moral content, based on the idea that legality does not depend on its moral merit. ‘Soft’ positivists, like H. L. A. Hart, reject this view, and acknowledge that content or merit may be included or incorporated as a condition of validity. They are therefore also called ‘incorporationists’.
Raz argues, however, that the law is autonomous: we can identify its content without recourse to morality. Legal reasoning, on the other hand, is not autonomous; it is an inevitable, and desirable, feature of judicial reasoning. For Raz, the existence and content of every law may be determined by a factual enquiry about conventions, institutions, and the intentions of participants in the legal system.
The answer to the question ‘what is law?’ is always a fact. It is never a moral judgment. This marks him as a ‘hard’ or ‘exclusive’ positivist. ‘Exclusive’ because the reason we regard the law as authoritative is the fact that it is able to guide our behaviour in a way that morality cannot do. In other words, the law asserts its primacy over all other codes of conduct. Law is the ultimate source of authority. Thus, a legal system is quintessentially one of authoritative rules. It is this claim of authority that is the trademark of a legal system.
Raz identifies three principal claims made by positivists and attacked by natural lawyers:
The ‘social thesis’: that law may be identified as a social fact, without reference to moral considerations.
The ‘moral thesis’: that the moral merit of law is neither absolute nor inherent, but contingent upon ‘the content of the law and the circumstances of the society to which it applies’. The ‘semantic thesis’: that normative terms such as ‘right’ and ‘duty’ are not used in moral and legal contexts in the same way. Raz accepts only the ‘social thesis’ on the basis of the three accepted criteria by which a legal system may be identified: its efficacy, its institutional character, and its sources. From all three, moral questions are excluded. Thus, the institutional character of law means simply that law are identified by their relationship to certain institutions (e.g. the legislature). Anything – however morally acceptable – not admitted by such institutions is not law, and vice versa.
Raz actually postulates a stronger version of the ‘social theses (the ‘sources thesis’) as the essence of legal positivism. His major justification for the sources thesis is that it accounts for a primary function of law: the setting of standards by which we are bound, in such a way that we cannot excuse our non-compliance by challenging the rationale for the standard.
It is mainly upon his acceptance of the social thesis, and his rejection of the moral and semantic theses, that Raz assembles his case against a general moral obligation to obey the law. In reaching this conclusion, he repudiates three common arguments made for the moral authority of law. First, it is often argued that to distinguish, as positivists do, between law and other forms of social control, is to neglect the functions of law; and because functions cannot be described in a value-free manner, any functional account of law must involve moral judgments – and so offend the social thesis. Raz argues that, while law does indeed have certain functions, his own analysis of them is value-neutral.
Nor, secondly, does Raz accept that the content of law cannot be determined exclusively by social facts: so, for example, since courts unavoidably rely on explicitly moral considerations, they creep into determinations of what the law actually is. Although Raz concedes that moral concerns do enter into adjudication, he insists that this is inevitable in any source-based system. But it does not, in his view, establish a case against the sources thesis. Finally, it is occasionally argued that what is distinctive about the law is that it conforms to the ideal of the rule of law, the belief that no one is above the law.
Surely, some contend, this demonstrates that the law is indeed moral. Raz attempts to refute this proposition by arguing that, while conformity to the rule of law reduces the abuse of executive power, it does not confer an independent moral merit upon the law.
For him the rule of law is a negative virtue – for the risk of arbitrary power is created by the law itself. He thus concludes that, even in a legal system that is fair and just, there is no prima facie duty to obey the law.
Law as interpretation
The foundations of legal philosophy were shaken in the 1970s by the ideas of the American jurist, Ronald Dworkin (b. 1931) who in 1969 succeeded H. L. A. Hart as Professor of Jurisprudence at Oxford. The dominance of legal positivism, especially in Britain, was over the next three decades subjected to a comprehensive onslaught in the form of a complex theory of law that is both controversial and highly influential. His concept of law continues to exert considerable authority, especially in the United States, whenever contentious moral and political issues are debated. It is unthinkable that any serious analysis of, say, the role of the United States Supreme Court, the issue of abortion, or general questions of liberty and equality could be conducted without a consideration of the views of Ronald Dworkin. His constructive vision of law is both a profound analysis of the concept of law and a compelling entreaty in support of its enrichment.
Among the numerous elements of his sophisticated philosophy is the contention that the law contains a solution to almost every problem. This is at variance with the traditional – positivist – perception that, when a judge is faced with a difficult case to which no statute or previous decision applies, he exercises discretion and decides the case on the basis of what seems to him to be the correct answer. Dworkin contests this position, and shows how a judge does not make law, but rather interprets what is already part of the legal materials. Through his interpretation of these materials, he gives voice to the values to which the legal system is committed. To understand Dworkin’s key proposition that law is a ‘gapless’ system, consider the following two situations:
An impatient beneficiary under a will murders the testator. Should he be permitted to inherit? A chess grand master distracts his opponent by continually smiling at him. The opponent objects. Is smiling in breach of the rules of chess?
These are both ‘hard cases’ for in neither case is there a determinable rule to resolve it. This gives legal positivists a headache, as positivism generally claims that law consists of rules determined by social facts. Where, as in these examples, rules run out, the problem can be resolved only by the exercise of a subjective, and hence potentially arbitrary, discretion: a lawyer’s nightmare.
If, however, there is more to law than rules, as Dworkin claims, then an answer may be found in the law itself. Hard cases such as these may, in other words, be decided by reference to the legal materials; there is no need to reach outside the law and so to allow subjective judgments to enter.
The first puzzle mentioned above is drawn from the New York decision of Riggs v. Palmer in 1899. The will in question was validly executed and was in the murderer’s favour. But whether a murderer could inherit was uncertain: the rules of testamentary succession provided no applicable exception. The murderer should therefore have a right to his inheritance. The New York court held, however, that the application of the rules was subject to the principle that ‘no person should profit from his own wrong’. Hence a murderer could not inherit from his victim. This decision reveals, Dworkin argues, that, in addition to rules, the law includes principles.
In the second dilemma, Dworkin argues, the referee is called upon to determine whether smiling is in breach of the rules of chess. The rules are silent. He must therefore consider the nature of chess as a game of intellectual skill; does this include the use of psychological intimidation? He must, in other words, find the answer that best ‘fits’ and explains the practice of chess. To this question there will be a right answer. And this is equally true of the judge deciding a hard case.
Legal systems characteristically generate controversial or hard cases such as these in which a judge may need to consider whether to look beyond the strict letter of what the law is to determine what it ought to be. He engages, in other words, in a process of interpretation in which arguments that resemble moral claims feature. This interpretive dimension of law is a fundamental component of Dworkin’s theory. His assault on legal positivism is premised on the impossibility of the separation between law and morals that it proposes.
Thus for Dworkin, law consists not merely of rules, as Hart contends, but includes what Dworkin calls non-rule standards. When a court has to decide a hard case it will draw on these (moral or political) standards – principles and policies – in order to reach a decision. No rule of recognition – as described by Hart – exists to distinguish between legal and moral principles. Deciding what the law is depends inescapably on moral-political considerations.
There are two phases in Dworkin’s conception of legal reasoning. First he contended in the 1970s that legal positivism is unable to explain the significance of legal principles in determining what the law is. In the 1980s Dworkin advanced a more radical thesis that law was essentially an interpretive phenomenon. This view rests on two main premises. The first maintains that determining what the law requires in a particular case necessarily involves a form of interpretative reasoning. Thus, for example, to claim that the law protects my right of privacy against the Daily Rumour constitutes a conclusion of a certain interpretation. The second premise is that interpretation always entails evaluation. If correct, this would all but sound the death knell for legal positivists’ separation thesis.
In a hard case the judge therefore draws on principles, including his own conception of the best interpretation of the system of political institutions and decisions of his community. ‘Could my decision’, he must ask, ‘form part of the best moral theory justifying the whole legal and political system?’ There can only be one right answer to every legal problem; the judge has a duty to find it. His answer is ‘right’ in the sense that it fits best with the institutional and constitutional history of his society and is morally justified. Legal argument and analysis are therefore ‘interpretive’ because they attempt to make the best moral sense of legal practices.
Dworkin’s attack on legal positivism is crucially founded on his concern that the law ought to ‘take rights seriously’. Rights trump other considerations such as community welfare. Individual rights are seriously compromised if, as Hart claims, the result of a hard case depends on the judge’s personal opinion, intuition, or the exercise of his strong discretion. My rights may then simply be subordinated to the interests of the community. Instead, Dworkin contends, my rights should be recognized as part of the law. His theory thus provides more muscle to the defence of individual rights and liberty than legal positivism can deliver.
In his best-known and most comprehensive work, Law’s Empire, Dworkin launches a wholesale attack on both ‘conventionalism’ and pragmatism. The former argues that law is a function of social convention which it then designates as legal convention. In other words, it claims that law consists in no more than following certain conventions (e.g. that decisions of higher courts are binding on lower ones). Conventionalism also regards law as incomplete: the law contains ‘gaps’ which judges fill with their own preferences.
Judges, in other words, exercise a ‘strong discretion’. Conventionalist accounts of law, Dworkin argues, fail to provide either a convincing account of the process of lawmaking or an adequately robust defence of individual rights. In Dworkin’s vision of ‘law as integrity’ (see below), a judge must think of himself not, as the conventionalist would claim, as giving voice to his own moral or political convictions, or even to those convictions which he thinks the legislature or the majority of the electorate would approve, but as an author in a chain of the common law. As Dworkin says, He knows that other judges have decided cases that, although not exactly like his case, deal with related problems; he must think of their decisions as part of a long story he must interpret and then continue, according to his own judgment of how to make the developing story as good as it can be.
Pragmatists, according to Dworkin, adopt a sceptical attitude towards the view that past political decisions justify state coercion. Instead, they find such justification in the justice or efficiency or other virtue of the exercise of such coercion by a judge. This approach fails to take rights seriously because it treats rights instrumentally – they have no independent existence: rights are simply a means by which to make life better. Pragmatism rests on the claim that judges do – and should – make whatever decisions seem to them best for the community’s future, rejecting consistency with the past as valuable for its own sake.
It is only what Dworkin calls ‘law as integrity’ that provides an acceptable justification for the state’s use of force. Law’s empire, he tells us, ‘is defined by attitude, not territory or power or processes. Law, in other words, is an interpretive concept addressed to politics in its widest sense. It adopts a constructive approach in that it seeks to improve our lives and our community.
Principles and policies
Dworkin’s account of the judicial function requires the judge to treat the law as if it were a seamless web. There is no law beyond the law. Nor, contrary to the positivist thesis, are there any gaps in the law. Law and morals are inextricably intertwined. There cannot therefore be a rule of recognition, as described in the last chapter, by which to identify the law. Nor does Hart’s view of law as a union of primary and secondary rules provide an accurate model, for it omits or at least neglects the importance of principles and policies.
Dworkin claims that, while rules ‘are applicable in an all-or-nothing fashion’, principles and policies have ‘the dimension of weight or importance’. In other words, if a rule applies, and it is a valid rule, a case must be decided in a way dictated by the rule. A principle, on the other hand, provides a reason for deciding the case in a particular way, but it is not a conclusive reason: it will have to be weighed against other principles in the system.
Principles differ from policies in that the former is ‘a standard to be observed, not because it will advance or secure an economic, political, or social situation, but because it is a requirement of justice or fairness or some other dimension of morality’. A ‘policy’, however, is ‘that kind of standard that sets out a goal to be reached, generally an improvement in some economic, political, or social feature of the community’.
Principles describe rights; policies describe goals. But rights are trumps. They have a ‘threshold weight’ against community goals. They should not be squashed by a competing community goal. Every civil case, he argues, raises the question, ‘Does the plaintiff have a right to win?’ The community’s interests should not come into play. Thus civil cases are, and should be, decided by principles. Even where a judge appears to be advancing an argument of policy, we should interpret him as referring to principle because he is, in fact, determining the individual rights of members of the community. Thus, should a judge appeal, say, to public safety, to justify some abstract right, this should be read as an appeal to the competing rights of those whose security will be forfeited if the abstract right is made concrete.
In a ‘hard case’ – like the homicidal beneficiary in Riggs v. Palmer – no rule is immediately applicable. Thus the judge must apply standards other than rules. The ideal judge – whom Dworkin calls Hercules – must ‘construct a scheme of abstract and concrete principles that provides a coherent justification for all common law precedents and, so far as these are to be justified on principle, constitutional and statutory principles as well’. Where the legal materials permit more than one consistent interpretation, Hercules will decide on the theory of law and justice which best coheres with the ‘institutional history’ of his community.
What if Hercules discovers a previous decision that does not ‘fit’ his own interpretation of the law? Suppose it is a precedent decided by a higher court which Hercules lacks the power to overrule? He may, says Dworkin, treat it as an ‘embedded mistake’, and confine it to having only ‘enactment force’. This means its effect would be limited in future cases to its precise wording. Where, however, a previous judgment is neither overruled nor is regarded as an embedded mistake, it will generate what Dworkin calls ‘gravitational force’, that is, it will exert an influence that extends beyond its actual wording: it will appeal to the fairness of treating like cases alike.
Dworkin contends that conventionalism (or legal positivism) is gravely impaired by arguments concerning the criteria of legal validity. As we saw in the last chapter, legal positivists are generally content with the fact that the rule of recognition stipulates that X is law. The pedigree of a rule is thus conclusive of its validity. But the basis of legal validity, Dworkin argues, cannot be determined solely by the standards contained in the rule of recognition.
This constitutes what he calls the ‘semantic sting’ of legal positivism: positivist arguments about the law are really semantic disagreements concerning the meaning of the word ‘law’. But Dworkin argues that the concept of legal validity is more than mere promulgation in accordance with the rule of recognition.
Semantic theories contest the claim that there are universal standards that exhaust the conditions for the proper application of the concept of law. Such theories, Dworkin argues, erroneously suppose that significant disagreement is impossible unless there are criteria for determining when our claims are sound, even if we cannot accurately specify what these criteria are.